Yingxi BI, On the Death Penalty for Drug-Related Crime in China, Human Rights and Drugs. Vol. 2, No. I, 2012

ABSTRACT

This article analyses the death penalty for drug-related crime in China. It considers the basis upon which China applies the death penalty for drug-related offences, and the debates surrounding the imposition of the death penalty for drug-related offences from the perspective of both penology and human rights. Based on the evidence discerned about China’s current situation, the article discusses the possibility of China abolishing the death penalty for drug-related crime in the future.

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Parallel Universes: Human Rights and International Drug Control

This video produced by the Hungarian Civil Liberties Union highlights the human rights violations done against people all over the world as a result of the current international drug control system. The activists and researchers interviewed here recount the litany of abuses done in the name of drug control: torture, corporal punishment, overcrowding in prisons, death penalty for drug offences, denial of palliative care and HIV/AIDS treatment, among others.

As explained by the producers, the words of Paul Hunt, former UN Special Rapporteur on the Right to Health (2002-2008), at the 2008 Harm Reduction Conference are more valid than ever. The international drug control seems to be operating in a parallel universe from human rights law and it is the most vulnerable people who pay the price for this.

Click here to read Human Rights, Health and Harm Reduction: States’ amnesia and parallel universes, by Prof. Paul Hunt, member of the International Advisory Committee of the International Centre on Human Rights and Drug Policy.

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Narcotics Watchdog Turns Blind Eye to Rights Abuses

Patrick Gallahue’s most recent op-ed presents a strong argument against the reluctance of the International Narcotics Control Board to condemn the human rights violations done in the name of drug control.

The INCB, a quasi-judicial monitoring mechanism known and ‘guardian’ of the international drug control treaties, has remained silent about the imposition of forced labor at compulsory drug detention centres, despite the condemnation of twelve UN agencies this month. It has also refused to comment on the death penalty for drug offenders, arguing that it was beyond the mandate of the INCB and ’such sanctions were the “exclusive prerogative” of States.’

Read here Patrick Gallahue’s full analysis on the arguments by the INCB and how they contradict international human rights law.

Say NO to death for drugs

In this commentary, published in The Hindu, Rick Lines and Anand Grover, present a long list of international and domestic jurisprudence that defy the justifications for handing down death penalties for drug offenders in India.

They argue that, although most experts agree that drug offences do not warrant death penalties, countries like India impose it regardless of whether offenders were “young or old, sick or mentally infirm, socially and economically disadvantaged or acting under duress or pressure”.

Instead, capital punishment is decided on the basis of the quantity of drugs found. Sentencing guidelines based on quantity/purity calculations have been criticised by academic and legal commentators as unreliable and arbitrary.

Read more about the death penalty for drug offences in “The Death Penalty for Drug Offences: A Violation of International Human Rights Law”, by Rick Lines, co-founder of the International Centre for Human Rights and Drug Policy and Executive Director of Harm Reduction International.

Afghan Children Ensnared in Heroin Trade With Iran

The Institute for War and Peace Reporting (IWPR) published this week an exclusive investigation on the use of Afghan children as drug mules, who take high risks to smuggle heroin into Iran.

The story highlights the risks not only from swalling pellets with heroin, which can burst during the way, but also how children are vulnerable to smugglers who use them to bypass the draconian drug trafficking penalties in Iran.

“Some children are killed, while others have been thrown in prison. In fact, children are attractive to the smugglers because they are not executed in Iran, where drug trafficking is a serious offence that carries capital punishment.”

Most children earn very little in comparison to the high profits made by smugglers. They often don’t know the risks involved or as the report explains, some parents will rent their kids for smuggling.

This highlights the complex situation in Afghanistan, where families depend on the opium trade due to the lack of viable alternative development funding. As one of the children interviewed said “the smugglers exploit our poverty and obligations.” The International Labor Office (ILO) and UNICEF define the use of children for drug smuggling as child trafficking and one of the worst forms of child labour.

The tough choices made by families is also evident in the case of farming families who are coerced into giving away their children to repay a debt to local drug lords. For more on this issue read ‘In the Shadows of the Insurgency in Afghanistan: Child Bartering, Opium Debt, and the War on Drugs’ by Atal Ahmadzai and Christopher Kuonqui, published in Children of the Drug War.

Additional information on child drug mules:

‘The use of children in the production, sales and trafficking of drugs: a synthesis of participatory action-oriented research programs in Indonesia, the Philippines and Thailand’, by Emma Porio and Christine S. Crisol, published by the International Labor Office (2004). Click here for the report.

Stop the Traffik: End Child Exploitation, UNICEF UK (2003). Read this report on the changing face of human trafficking and children smuggling drugs into the United Kingdom.

Poverty Provides Growing Number of ‘Drug Mules’, by Angel Paez, published by Inter Press Service(2008). Read the story.

Indian Court overturns mandatory death penalty for drug offences

16 June 2011, Mumbai: In an unprecedented decision, the Bombay High Court struck down the mandatory death penalty for drug offences, becoming the first Court in the world to do so. Announcing the order via video conferencing, a division bench of Justices A.M Khanwilkar and A.P Bhangale declared Section 31A of the Narcotic Drugs and Psychotropic Substances Act, 1985 (NDPS Act) that imposes a mandatory death sentence for a subsequent conviction for drug trafficking ‘unconstitutional’.

The Court however, refrained from striking down the law, preferring to read it down instead. Consequently, the sentencing Court will have the option and not obligation, to impose capital punishment on a person convicted a second time for drugs in quantities specified under Section 31A.

The decision brings some reprieve to Ghulam Mohammed Malik, a Kashmiri man sentenced to death by the Special NDPS Court in Mumbai in February 2008 for a repeat offence of smuggling charas [cannabis resin]. Because of the mandatory nature of the punishment under Section 31A as it stood then, Malik was sentenced to death, without consideration of individual circumstances or mitigating factors. The High Court’s verdict came in response to a petition filed by the Indian Harm Reduction Network (IHRN), a consortium of NGOs working for humane drug policies, who assailed mandatory capital punishment as arbitrary, excessive and disproportionate to the crime of dealing in drugs.

Reacting to the order, Director of the Lawyers Collective, Anand Grover, who led the case for IHRN, said – “the order marks an important advance in drug policy and anti-death penalty campaigns. We will examine the decision fully to assess whether striking down the death penalty, as was done by the Supreme Court for Section 303 of the Indian Penal Code would have been more appropriate”.

Across the world, 32 countries impose capital punishment for offences involving narcotic drugs and psychotropic substances. Of these, 13 countries (including India until today) prescribe mandatory death sentences for drug crimes. In countries like Iran and China that actually carry out executions, drug offenders constitute the vast majority of those executed. In May last year, the Court of Appeal in Singapore upheld the mandatory death sentence imposed upon a young Malaysian for possession of heroin.“This is a positive development, which signals that Courts have also started to recognize principles of harm reduction and human rights in relation to drugs” remarked Luke Samson, President, IHRN.

Welcoming the decision, Rick Lines, Executive Director of Harm Reduction International, a UK based agency that specializes in drug control and human rights and the author of ‘The Death Penalty for Drug Offences: A violation of International Human Rights Law’ (2007), said “The Court has upheld at the domestic level what has been emphasised for years by international human rights bodies – capital drug laws that take away judicial discretion are a violation of the rule of law. India’s justice system has affirmed that it is entirely unacceptable for such a penalty to be mandatory. This will set a positive precedent for judicial authorities in the region, which is rife with draconian drug laws.”

Litigating against the Death Penalty for Drug Offences: An interview with Saul Lehrfreund & Parvais Jabbar

Saul Lehrfreund MBE and Parvais Jabbar are Executive Directors of the The Death Penalty Project, which they have run since its inception. Based at Simons Muirhead & Burton in London, The Project works to promote and protect the human rights of those facing the death penalty.  Although operating in all jurisdictions where the death penalty remains an enforceable punishment, its actions are concentrated in those countries that retain the Judicial Committee of the Privy Council in London and in other Commonwealth countries, principally the Caribbean, Africa and South East Asia. Alongside its activities representing individuals at risk of execution,

The Project also provides expert support to local lawyers and human rights organisations in bringing legal challenges to the application of the death penalty, with notable success in a variety of jurisdictions. The Project’s commitment to providing free legal representation to men and women on death row has been critical in identifying and redressing a significant number of miscarriages of justice, promoting minimum fair trial guarantees, and establishing violations of domestic and international human rights.

Lehrfreund and Jabbar have been involved in litigating or assisting in a number of challenges to the mandatory death penalty for drug offences.  Most recently in 2010, they assisted in the Yong Vui Kong challenge in Singapore. The International Journal on Human Rights and Drug Policy sat down with them to discuss their experience in these cases.

Download the full interview, published in Vol I of the International Journal on Human Rights and Drug Policy

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Y. McDermott, Yong Vui Kong v. Public Prosecutor and the Mandatory Death Penalty for Drug Offences in Singapore: A Dead End for Constitutional Challenge?, International Journal on Human Rights and Drug Policy, Vol I, 2010

ABSTRACT

This article examines constitutional challenges to the mandatory death  sentence in Singapore, with particular reference to the most recent case of  Yong Vui Kong v. Public Prosecutor (2010). It discusses whether the Court of  Appeal was too hasty in disregarding more recent jurisprudence of the Privy Council, which held the mandatory death sentence as a form of inhuman treatment or punishment. It also examines the customary international law prohibition of the mandatory death penalty, and the imposition of the mandatory death penalty for drug offences as a breach of the equality guarantee in Singapore’s constitution. The article reveals a dismal future for a nuanced and sensible approach towards drug crime in Singapore, in that the latest case closes off many avenues for constitutional litigation.

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Thematic Factsheets on the Jurisprudence of the European Court of Human Rights

The Press Service of the ECHR has compiled Factsheets by theme on the Court’s case-law and pending cases. These are very useful resources, including links to the cases referred to.

Of particular interest from a drug policy perspective are:

Police arrest

Prisoners’ health rights

Detention and mental health

Prison conditions

Child protection

Death penalty abolition

Mental health

Data protection

For regular updates and commentary on the ECHR, see ECHR Blog.

The Vienna Declaration: A Global Call to Action for Science-based Drug Policy

In Lead Up to XVIII International AIDS Conference, Scientists and Other Leaders Call for Reform of International Drug Policy and Urge Others to Sign-on

28 June 2010 [Vienna, Austria] – Three leading scientific and health policy organizations today launched a global drive for signatories to the Vienna Declaration, a statement seeking to improve community health and safety by calling for the incorporation of scientific evidence into illicit drug policies. Among those supporting the declaration and urging others to sign is 2008 Nobel Laureate and International AIDS Society (IAS) Governing Council member Prof. Françoise Barré-Sinoussi, co-discoverer of HIV.

The Vienna Declaration is the official declaration of the XVIII International AIDS Conference (AIDS 2010), the biennial meeting of more than 20,000 HIV professionals, taking place in Vienna, Austria from 18 to 23 July 2010.

“Many of us in AIDS research and care confront the devastating impacts of misguided drug policies every day,” said AIDS 2010 Chair Dr. Julio Montaner, President of the IAS and Director of the BC Centre for Excellence in HIV/AIDS. “These policies fuel the AIDS epidemic and result in violence, increased crime rates and destabilization of entire states – yet there is no evidence they have reduced rates of drug use or drug supply. As scientists, we are committed to raising our collective voice to promote evidence-based approaches to illicit drug policy that start by recognizing that addiction is a medical condition, not a crime.”

The Vienna Declaration describes the known harms of conventional “war on drugs” approaches and states:

“The criminalisation of illicit drug users is fuelling the HIV epidemic and has resulted in overwhelmingly negative health and social consequences. A full policy reorientation is needed…Reorienting drug policies towards evidence-based approaches that respect, protect and fulfill human rights has the potential to reduce harms deriving from current policies and would allow for the redirection of the vast financial resources towards where they are needed most: implementing and evaluating evidence-based prevention, regulatory, treatment and harm reduction interventions.”

Outside of sub-Saharan Africa, injecting drug use accounts for approximately one in three new cases of HIV. In some areas of rapid HIV spread, such as Eastern Europe and Central Asia, injecting drug use is the primary cause of new HIV infections. Legal barriers to scientifically proven prevention services such as needle programmes and opioid substitution therapy (OST) mean hundreds of thousands of people become infected with HIV and Hepatitis C (HCV) every year. The criminalization of people who inject drugs has also resulted in record incarceration rates placing a massive burden on the taxpayer. HIV outbreaks have also been reported in prisons in various settings internationally. This emphasis on criminalization produces a cycle of disease transmission, along with broken homes and livelihoods destroyed. Yet these costs, along with the more direct costs of the ‘war on drugs’, produce no measurable benefits.

“The current approach to drug policy is ineffective because it neglects proven and evidence-based interventions, while pouring a massive amount of public funds and human resources into expensive and futile enforcement measures,” said Dr. Evan Wood, founder of the International Centre for Science in Drug Policy (ICSDP) and Clinical Associate Professor at the University of British Columbia. “It’s time to accept the war on drugs has failed and create drug policies that can meaningfully protect community health and safety using evidence, not ideology.”

The Vienna Declaration calls on governments and international organizations, including the United Nations, to take a number of steps, including:

• undertake a transparent review the effectiveness of current drug policies;
• implement and evaluate a science-based public health approach to address the harms stemming from illicit drug use;
• scale up evidence-based drug dependence treatment options;
• abolish ineffective compulsory drug treatment centres that violate the Universal Declaration of Human Rights; and
• unequivocally endorse and scale up funding for the drug treatment and harm reduction measures endorsed by the World Health Organization (WHO) and the United Nations.
• The declaration also calls for the meaningful involvement of people who use drugs in developing, monitoring and implementing services and policies that affect their lives.

“As a scientist, I strongly support drug policies that are based on evidence of what actually works,” said Prof. Françoise Barré-Sinoussi, Director of the Regulation of Retroviral Infections Unit at the Institute Pasteur, IAS Governing Council member and recipient of the 2008 Nobel Prize for Medicine. “I join with my colleagues around the world today to sign the Vienna Declaration in support of science-driven policies and human rights.”

The effectiveness of opioid substitution therapy (OST) and needles and syringe programmes is well-documented, though access to such interventions is often limited where HIV is spreading most rapidly. According to various scientific reviews conducted by WHO, the US Institutes of Medicine and others, these programmes reduce HIV rates without increasing rates of drug use. These cost-effective interventions also produce significant savings in future health care costs, and help people who use drugs access health care and drug treatment. No evidence exists demonstrating negative consequences of use of these programmes.

“Reflecting the AIDS 2010 theme of Rights Here, Right Now, the Vienna Declaration is rooted in the belief that global drug policy must respect the human rights of people who use drugs if it is to be at all effective,” said AIDS 2010 Local Co-Chair Dr. Brigitte Schmied, President of the Austrian AIDS Society. “No one who is familiar with addiction would deny the negative impacts it has on individuals, families and entire communities, but those harms do not justify human rights violations. People addicted to illicit drugs have the right to evidence-based drug treatment, to interventions to prevent infection, and, if they are living with HIV, to antiretroviral treatment.”

The Vienna Declaration was drafted by an international team of scientists and other experts, many of whom will participate in AIDS 2010 next month. It was initiated by the International AIDS Society (IAS), the International Centre for Science in Drug Policy (ICSDP), and the BC Centre for Excellence in HIV/AIDS based in Vancouver, British Columbia.

Those wishing to sign on may visit www.viennadeclaration.com, where the full text of the declaration, along with a list of authors, is available. The two-page declaration references 28 reports, describing the scientific evidence documenting the effectiveness of public health approaches to drug policy and the negative consequences of approaches that criminalize drug users.

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